Howard Ross v. West Wind Condominium Association

Rel: July 25, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2025
_________________________

CL-2025-0064
_________________________

Howard Ross

v.

West Wind Condominium Association

Appeal from Madison Circuit Court
(CV-24-143)

MOORE, Presiding Judge.

Howard Ross appeals from a judgment entered by the Madison

Circuit Court ("the trial court") dismissing his action against West Wind

Condominium Association ("West Wind"). We reverse and remand.
CL-2025-0064

Procedural History

The parties have previously appeared before this court. See Ross v.

West Wind Condo. Ass'n, [Ms. CL-2023-0829, Feb. 7, 2025] ___ So. 3d ___

(Ala. Civ. App. 2025) ("Ross"); Ross v. West Wind Condo. Ass'n, 216 So.

3d 438 (Ala. Civ. App. 2016); and Ross v. West Wind Condo. Ass'n, 153

So. 3d 29 (Ala. Civ. App. 2012), rev'd, 153 So. 3d 43 (Ala. 2014), on

remand, 153 So. 3d 52 (Ala. Civ. App. 2014). We take judicial notice of

the records in those previous appeals, in addition to the record in appeal

number CL-2025-0078, which appeal was dismissed by an order entered

on April 3, 2025, because it arose from a nonfinal judgment. See City of

Mobile v. Matthews, 220 So. 3d 1061, 1063-64 & n.3 (Ala. Civ. App. 2016)

(explaining the circumstances under which an appellate court can take

judicial notice of its own records in a different appeal).

On September 5, 2024, Ross initiated the present action by filing in

the trial court a complaint, which bears the heading "action to clear title,"

in which he asserted, among other things, that Unit J at the West Wind

condominium community had been conveyed to him on July 24, 1998;

that, on February 15, 2008, West Wind had recorded a foreclosure deed

for Unit J to itself and, subsequently, to its president, Joseph London III,

2
CL-2025-0064

without having given notice to Ross as required; and that, on January 2,

2015, the trial court had entered an order in case number CV-08-596.80

("the first foreclosure action") that held that the foreclosure by West Wind

had been wrongful, vacated the deed to London, and reinstated

ownership and possession of Unit J to Ross. Ross further asserted that,

on August 2, 2021, West Wind had initiated an action against Ross in the

Madison District Court for delinquent dues for Unit J ("the damages

action"), that Ross had appealed the decision of the Madison District

Court to the trial court, and that the trial court had granted a stay of

execution of the Madison District Court's judgment on January 15, 2023.1

Ross next asserted in his complaint that, while the damages action

was pending, West Wind had initiated an action against London in the

trial court, which was assigned case number CV-22-901183 ("the London

foreclosure action"), in which West Wind sought to foreclose on Unit J

without naming Ross as a defendant or giving him notice of its action;2

1In Ross, this court addressed Ross's appeal from the trial court's

judgment in the damages action, which was assigned case number CV-
22-146 in the trial court. That appeal remained pending at the time the
present action was initiated.

2A copy of West Wind's complaint in the London foreclosure action

appears in this court's record in Ross. The complaint, which was filed on
3
CL-2025-0064

that Ross had discovered the London foreclosure action after a default

judgment had been entered against London, who, according to Ross, had

no interest in Unit J; and that Ross had filed a motion to intervene in the

London foreclosure action following the entry of the default judgment,

which motion had been denied.3 Ross further alleged that West Wind

had subsequently conducted a private auction of Unit J, that it had issued

itself a deed for Unit J from London for $17,870, and that the trial court

had subsequently entered a judgment ratifying the sale in the London

foreclosure action. Ross next asserted that, after it entered the judgment

ratifying the sale in the London foreclosure action, the trial court entered

October 27, 2022, names London as a defendant and identifies him as the
record owner of Unit J; additionally, it identifies as fictitiously named
defendants "any and all persons and/or entities claiming an interest in
the property made the subject of [West Wind's] complaint whose names
are otherwise unknown to [West Wind] at this time, but will be added by
amendment upon reasonable discovery thereof." Ross is not named in
the complaint.

3In Ross, West Wind filed a copy of the trial court's March 31, 2023,

order denying Ross's motion to intervene in the London foreclosure
action.

4
CL-2025-0064

a judgment in the damages action declaring Ross the owner of Unit J and

directing him to pay $29,267.29 to West Wind.4

Ross requested in his complaint that the trial court "clear his title

to Unit J by vacating the foreclosure sale [in the London foreclosure

action] to West Wind and any other subsequent deeds of Unit J" as well

as "any other relief that is just and appropriate in this matter."

On October 15, 2024, West Wind filed a motion to dismiss Ross's

complaint for failure to state a cause of action upon which relief could be

granted. See Rule 12(b)(6), Ala. R. Civ. P. West Wind asserted, among

other things, that, on October 27, 2022, West Wind had initiated the

London foreclosure action seeking judicial foreclosure of Unit J and that

it had caused a title search to be performed on Unit J, which, it asserted,

showed London as the record owner of the property; that, on March 28,

2023, the trial court entered an order in the London foreclosure action

allowing the foreclosure of Unit J to proceed; that, on March 29, 2023,

Ross filed a motion to intervene and a motion to reconsider the default

4The trial court entered its judgment in the damages action on
September 19, 2023. The record before this court in Ross contains that
judgment, which states, in pertinent part, that "the evidence produced
showed that [Ross] owned in building 2940 Unit J" and that "there is no
question regarding [Ross's] ownership of the units at issue."
5
CL-2025-0064

judgment in the London foreclosure action, but that both motions had

been denied by the trial court;5 that, on April 26, 2023, Ross recorded

with the Office of the Judge of Probate of Madison County a final order

that had been entered in the first foreclosure action, which, according to

West Wind, "explicitly states that the parties shall 'execute any

documents necessary in order to effectuate the intent of this order' "; that

no documents had been recorded with the Office of the Judge of Probate

effectuating the order of the court; that, on July 11, 2023, Unit J had been

"properly foreclosed" with West Wind being conveyed Unit J by

foreclosure deed for unpaid condominium assessments, which was

ratified by a judgment of foreclosure entered by the trial court on

September 5, 2023; and that the foreclosure deed and the judgment of

foreclosure were recorded with the Office of the Judge of Probate on

September 15, 2023. West Wind asserted that Ross had "received notice

of the foreclosure sale by publication of same in the Madison County

Record and was present at, and participated in, the foreclosure sale" of

5In Ross, West Wind filed a copy of the trial court's order denying

Ross's motion to intervene in the London foreclosure action; that order
states: "The pending Rule 59[, Ala. R. Civ. P.,] motion was filed by a non-
party to this case and will not be considered."
6
CL-2025-0064

Unit J, that Ross "made no effort to redeem [Unit J] from the foreclosure

sale," and that "the appeal period for [the London foreclosure action] has

passed." West Wind asserted that Ross's complaint failed to state a cause

of action and that "no such action exists in Alabama." Accordingly, West

Wind sought the dismissal of the action, with prejudice, under Rule

12(b)(6).

On October 23, 2024, Ross filed an amendment "to change the title

of his action … for the purpose of clarifying and removing any confusion

as to his intent." He stated that the "title is now 'Action to Quiet by

Clearing Title.' " The trial court conducted a hearing on West Wind's

motion to dismiss; the record on appeal does not contain a transcript of

that hearing. On November 12, 2024, the trial court entered a judgment

granting West Wind's motion to dismiss the complaint. On December 9,

2024, Ross filed a postjudgment motion; the trial court entered an order

denying that motion on December 30, 2024. On January 27, 2025, Ross

timely filed a notice of appeal to this court.

Standard of Review

"A motion to dismiss filed pursuant to Rule 12(b)(6), Ala.
R. Civ. P., tests the sufficiency of a complaint to determine if
a plaintiff has stated a claim upon which relief can be granted.
Burch v. Birdsong, 181 So. 3d 343, 351 (Ala. Civ. App. 2015).

7
CL-2025-0064

The dismissal of a complaint, pursuant to Rule 12(b)(6), 'is
with prejudice to [a] plaintiff's right to file another action
against that defendant.' Ex parte Harrington, 289 So. 3d
1232, 1237 n.7 (Ala. 2019).

" ' "[T]he standard of review of a dismissal of a
complaint pursuant to Rule 12(b)(6)[, Ala. R. Civ.
P.,] is whether the plaintiff has stated a claim
whereby relief can be granted under any provable
set of facts and under any cognizable theory of
law." Henderson v. Early, 555 So. 2d 130, 131 (Ala.
1989).

" ' " 'Where a [motion to dismiss]
has been granted and [we are] called
upon to review the dismissal of the
complaint, we must examine the
allegations contained therein and
construe them so as to resolve all
doubts concerning the sufficiency of the
complaint in favor of the plaintiff. In so
doing, [we do] not consider whether the
plaintiff will ultimately prevail, only
whether he has stated a claim under
which he may possibly prevail.' "

" 'Armstrong v. Brown Serv. Funeral Home W.
Chapel, 700 So. 2d 1379, 1381 (Ala. Civ. App. 1997)
(quoting Fontenot v. Bramlett, 470 So. 2d 669, 671
(Ala. 1985)) (citations omitted); see also State ex
rel. Solaiman v. Aviki, 694 So. 2d 19, 20 (Ala. Civ.
App. 1997).'

"Berryman v. Berryman, 816 So. 2d 43, 45 (Ala. Civ. App.
2001).

" 'Furthermore, " '[i]t is a well-established principle
of law in this state that a complaint, like all other

8
CL-2025-0064

pleadings, should be liberally construed, Rule 8(f),
Ala. R. Civ. P., and that a dismissal for failure to
state a claim is properly granted only when it
appears beyond a doubt that the plaintiff can
prove no set of facts entitling him to relief.' " Seals
v. City of Columbia, 575 So. 2d 1061, 1063 (Ala.
1991)(quoting Fontenot [v. Bramlett], 470 So. 2d
[669,] 671 [(Ala. 1985)]); see also Winn-Dixie
Montgomery, Inc. v. Henderson, 371 So. 2d 899
(Ala. 1979); and Fraternal Order of Police,
Strawberry Lodge No. 40 v. Entrekin, 294 Ala.
201, 211, 314 So. 2d 663, 672 (1975) (noting that
pleadings are required to give notice and are not
required to precisely plead every fact necessary to
entitle the pleader to a judgment).'

"Burch, 181 So. 3d at 352."

Ellison v. Stokes, 385 So. 3d 48, 50-51 (Ala. Civ. App. 2023).

Discussion

Ross argues on appeal that the trial court erred in dismissing his

complaint. He asserts that, because he was not named as a defendant in

the London foreclosure action, the trial court lacked jurisdiction to enter

a judgment of foreclosure that affected Ross's interest in Unit J, that the

trial court's judgment of foreclosure is void, and that the foreclosure deed

to West Wind is also void.

Ross cites in support of his argument, among other cases, our

supreme court's decision in Cathedral of Faith Baptist Church, Inc. v.

9
CL-2025-0064

Moulton, 373 So. 3d 816 (Ala. 2022). In that case, our supreme court

considered evidence indicating that Cathedral of Faith Baptist Church,

Inc. ("Cathedral"), had owned property in Birmingham, where it operated

a church, and that, after the church's services were discontinued, legal

title of the property vested in Lee Shefton Riggins, who was a stockholder

and the chairman of the board of Cathedral. 373 So. 3d at 817-18. Later,

Riggins leased the property to the pastor of Broken Vessel United Church

("Broken Vessel"). Id. at 818. Broken Vessel and its pastor agreed to pay

the commercial-liability insurance that Cathedral maintained, but

Broken Vessel and its pastor later changed the insurance carrier without

the knowledge or consent of Cathedral and Riggins. Id. When the church

building was destroyed by a fire, Broken Vessel's pastor made a claim

regarding the property and its contents, and Riggins later discovered a

property settlement with the insurance carrier that Broken Vessel and

its pastor had agreed to without his knowledge. Id. Riggins also

discovered a general warranty deed that purported to convey title to the

church property from Riggins to Broken Vessel. Id. Cathedral and

Riggins asserted several claims against Broken Vessel and its pastor,

which were later dismissed pursuant to Rule 12(b)(6) on the basis that

10
CL-2025-0064

the claims were barred by the applicable statute of limitations. Id. Our

supreme court reversed the dismissal of Cathedral and Riggins's claim

regarding the validity of the warranty deed, which it interpreted as a

claim for a declaratory judgment despite the absence of the phrase

"declaratory judgment" on the face of the complaint. Id. at 819-21. Our

supreme court stated, in pertinent part:

"Rule 8(a)[, Ala. R. Civ. P.,] provides:

" '(a) Claims for Relief. A pleading which sets
forth a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim,
shall contain (1) a short and plain statement of the
claim showing that the pleader is entitled to relief,
and (2) a demand for judgment for the relief the
pleader seeks. Relief in the alternative or of
several different types may be demanded.'

"The primary purpose of notice pleading is to provide
defendants adequate notice of the claims against them.
Adkison v. Thompson, 650 So. 2d 859 (Ala. 1994). '[P]leadings
are to be liberally construed in favor of the pleader.' Id. at 862.
Finally,

" 'the dismissal of a complaint is not proper if the
pleading contains "even a generalized statement of
facts which will support a claim for relief under
[Rule 8, Ala. R. Civ. P.]" (Dunson v. Friedlander
Realty, 369 So. 2d 792, 796 (Ala. 1979)), because
"[t]he purpose of the Alabama Rules of Civil
Procedure is to effect justice upon the merits of the
claim and to renounce the technicality of

11
CL-2025-0064

procedure." Crawford v. Crawford, 349 So. 2d 65,
66 (Ala. Civ. App. 1977).'

"Simpson v. Jones, 460 So. 2d 1282, 1285 (Ala. 1984)."

373 So. 3d at 819.

Our supreme court observed that, on the face of the complaint,

Cathedral and Riggins had sought, among other things, "clear title" to

the church property; had denied that Riggins had conveyed the church

property to Broken Vessel and that the signature on the warranty deed

was that of Riggins; and had included in their prayer for relief a request

for a judgment declaring that the warranty deed was "invalid." Id. at

819-20. Thus, our supreme court concluded, "[t]he complaint sufficiently

gave notice that a forged deed was the basis of the complaint and that

the plaintiffs were seeking a judgment declaring the deed invalid on that

basis." Id. at 820. It held, therefore, that the allegations of the complaint,

when construed in favor of Cathedral and Riggins, were sufficient to state

a claim for a declaratory judgment and reversed the judgment dismissing

the claim regarding the validity of the warranty deed. Id.

In the present case, Ross sought to "clear his title" to Unit J and

requested that the foreclosure sale of Unit J to West Wind be vacated. It

is clear from the factual assertions in the complaint that Ross was

12
CL-2025-0064

seeking the vacation of the foreclosure deed and any subsequent deeds

based on his assertion that he had not been named as a party to the

London foreclosure action despite West Wind's knowledge of Ross's

ownership interest in Unit J. Ross asserts on appeal, among other things,

that he was denied due process in the London foreclosure action and that

the trial court did not have personal jurisdiction over him in that action

such that its judgment of foreclosure had no effect as to him. He cites

Campbell v. Taylor, 159 So. 3d 4, 10-11 (Ala. 2014), for the following

proposition:

"When a party is not served or joined in an action and the trial
court thus acquires no jurisdiction over it, the judgment is
deemed 'void' 'for purpose[s] of Rule 60(b)(4)[, Ala. R. Civ. P.].'
Ex parte Wilson Lumber Co., 410 So. 2d 407, 409 (Ala. 1982).
See also Ex parte Pate, 673 So. 2d 427, 429 (Ala. 1995) ('If a
court lacks jurisdiction of a particular person, or if it denied
that person due process, then the court's judgment is void.'),
and Horizons 2000, Inc. v. Smith, 620 So. 2d 606, 607 (Ala.
1993) ('A judgment rendered against a defendant in the
absence of personal jurisdiction over that defendant is void.')."

In City of Birmingham v. Metropolitan Management of Alabama,

LLC, 350 So. 3d 307 (Ala. 2021), our supreme court considered an appeal

from an order denying a Rule 60(b)(4), Ala. R. Civ. P., motion to vacate a

judgment quieting title to property. In that case, the State of Alabama

had purchased a parcel of property located in Jefferson County at a tax

13
CL-2025-0064

sale, and, later, the City of Birmingham ("the City") had purchased a

delinquent demolition assessment against that property. 350 So. 3d at

308. The property was later sold by the State; the managing member of

Metropolitan Management of Alabama, LLC ("Metropolitan"), obtained

title to the property by a tax deed, and he, in turn, conveyed the property

to Metropolitan by a quitclaim deed. Id. Metropolitan commenced an

action to quiet title to the property, naming certain fictitiously named

defendants representing individuals or entities who may have had an

interest in the property, and a judgment was entered quieting title to the

property in Metropolitan and conveying fee-simple title to Metropolitan.

Id. Following the entry of the judgment, Metropolitan's attorney

contacted counsel for the City; Metropolitan asserted that it had

discovered the City's recorded assessment interest after the entry of the

judgment. Id. The City then filed a motion to intervene in the quiet-title

action and a motion to vacate the judgment as void under Rule 60(b)(4);

the motion to vacate was denied. Id.

The City appealed and argued before our supreme court that the

judgment was void because the trial court in that action had lacked

personal jurisdiction to adjudicate the City's interest in the property. Id.

14
CL-2025-0064

at 309. It asserted that Metropolitan had constructive knowledge of the

City's interest and of its residence by virtue of the City's recorded deed.

Id. Our supreme court determined that Metropolitan had knowledge of

the City's residence and that its service by publication without first

attempting another means of service failed to comply with Rule 4.3(b),

Ala. R. Civ. P. Id. at 310. It cited Allsopp v. Bolding, 86 So. 3d 952, 957

(Ala. 2011), for the proposition that " '[i]f [a] … judgment is void because

the trial court lacked subject-matter or personal jurisdiction or because

the entry of the judgment violated the defendant's due-process rights,

then the trial court has no discretion and must grant relief under Rule

60(b)(4).' " 350 So. 3d at 311. Our supreme court concluded that the

City's motion had been brought under Rule 60(b)(4); that the substance

of its argument was that the judgment was void; and that, because the

motion was based on the voidness of the judgment, it could be filed at any

time. Id. Accordingly, the order denying the motion to vacate the

judgment was reversed. Id.

In its motion to dismiss and on appeal, West Wind has asserted that

the appeal period in the London foreclosure action "has passed." Like in

City of Birmingham, however, because Ross's allegations in this action

15
CL-2025-0064

challenge the judgment entered in the London foreclosure action and the

resulting foreclosure deed as being void, the action could be brought at

any time. Ross argues on appeal that the trial court's judgment in the

London foreclosure action violated his due-process rights and that the

trial court lacked personal jurisdiction to adjudicate his interest in Unit

J.

In its brief on appeal, West Wind cites Upton v. Mississippi Valley

Title Insurance Co., 469 So. 2d 548, 555 (Ala. 1985), in support of its

assertion that it "had no duty to research any records other than those in

the Office of the Judge of Probate of Madison County, Alabama, for

information pertaining to the property." West Wind's brief, p. 9. We

interpret West Wind's argument in its motion to dismiss and on appeal

as asserting that it could not be charged with constructive notice of Ross's

interest in Unit J such that its failure to name Ross as a defendant in the

London foreclosure action and the resulting foreclosure are valid. At

issue in Upton was whether a title-insurance company had complied with

the policy provisions in a title-insurance policy regarding its obligation to

identify an easement pursuant to its title search related to certain

property. Id. at 554-56. In addressing the argument before it, our

16
CL-2025-0064

supreme court considered Ala. Code 1975, §§ 35-4-51 and -63. Id. at 554.

Section 35-4-51 provides, in pertinent part, that all deeds or other

documents purporting to convey any interest in any real estate shall be

admitted to record in the office of the probate judge of any county and

that their filing for registration shall constitute notice of their contents.

Section 35-4-63 provides that the recording in the proper office of any

conveyance of property that may be legally admitted to record operates

as a notice of the contents of such a conveyance without any

acknowledgment or probate thereof as required by law. Our supreme

court determined in Upton that those statutes constituted "[t]he only law

[it had found] declaring that certain records shall impart constructive

notice of matters relating to land." 469 So. 2d at 555.

Unlike in Upton, the trial court in this case was not called upon to

determine whether West Wind had complied with the terms of an

insurance policy or had otherwise breached a duty pursuant to a contract.

Regarding West Wind's apparent argument that it lacked constructive

notice of Ross's ownership interest in Unit J, Ross argues in his reply

brief on appeal that he presented allegations in his complaint that would

support a finding that West Wind had actual notice of Ross's interest in

17
CL-2025-0064

Unit J. In Sumter County Board of Education v. University of West

Alabama, 349 So. 3d 1264, 1265 (Ala. 2021), our supreme court affirmed

that, " '[i]n considering whether a complaint is sufficient to withstand a

motion to dismiss, [an appellate court] must accept the allegations of the

complaint as true.' " (Quoting Creola Land Dev., Inc. v. Bentbrooke

Hous., L.L.C., 828 So. 2d 285, 288 (Ala. 2002).) Ross alleged in his

complaint that West Wind had been a party to the first foreclosure action,

that the trial court had entered a judgment in the first foreclosure action

vacating the deed to Unit J in favor of London and reinstating ownership

of Unit J to Ross, and that West Wind had initiated an action against

Ross on August 2, 2021, for delinquent dues related to Ross's ownership

of Unit J. Neither Upton nor the statutes cited therein stand for the

proposition that West Wind, as a party to the first foreclosure action,

could not be charged with actual or constructive notice of Ross's claimed

interest in Unit J under the circumstances alleged in Ross's complaint.

Accepting the allegations in Ross's complaint as true and resolving

all doubts concerning the sufficiency of the complaint in favor of Ross, we

agree with Ross that he has presented a set of facts that, if proved, could

afford him relief, like in Moulton and City of Birmingham. See Ellison,

18
CL-2025-0064

supra. Accordingly, we conclude that the trial court erred in dismissing

Ross's complaint in which he sought a determination that the judgment

in the London foreclosure action and the foreclosure deed for Unit J in

favor of West Wind are void. Our disposition is not to be construed as a

determination that Ross will ultimately prevail but, rather, should only

be construed as a determination that he may possibly prevail. See

Ellison, supra.

Conclusion

The judgment of the trial court dismissing Ross's complaint is

reversed, and the cause is remanded for proceedings consistent with this

opinion.

REVERSED AND REMANDED.

Edwards, Hanson, Fridy, and Bowden, JJ., concur.

19